Discretion of the authorities
All information at the discretion of the immigration authorities and embassies.
Here you learn ...
what discretion is and how it is exercised by authorities
which residence permits the authorities have discretion over
what limits the authorities have in exercising their discretion
how you can defend yourself against adversely exercised discretion
Table of Content
1. What is discretion?
2. For which residence permits is discretion exercised?
3. How is discretion exercised?
4. Limitations on discretion
5. Conclusion Discretionary exercise regarding visa and residence permit
1. What is discretion?
The exercise of discretion by immigration authorities is a central element of German residence law. Administrative discretion plays a crucial role, particularly in the context of visa issuance . The authority has discretion both regarding the actual decision and how it conducts the procedure (so-called procedural discretion ). This article examines the legal requirements governing the exercise of discretion, how authorities must document this, and the potential consequences of erroneous discretionary decisions.
Whenever the law grants authorities discretion, there is no rigid legal consequence . Rather, the competent authority is obliged to carry out an independent assessment based on all facts relevant to the decision. This so-called dutiful exercise of discretion ( Section 40 of the Administrative Procedure Act ) means that the decision must not be made arbitrarily, but in a comprehensible and documented manner . If the authority is authorized to act at its discretion, it must exercise its discretion in accordance with the purpose of the authorization and adhere to the statutory limits of discretion . This is also not a mere formality, since the law requires that the reasons for discretionary decisions must also reveal the actual aspects on which the authority based its discretion ( Section 39 (1) sentence 3 of the Administrative Procedure Act ). If this does not happen, the authority's decision may be unlawful.
2. For which residence permits is discretion exercised?
Embassies and immigration authorities are not required to exercise discretion for all residence permits. Many residence permits are legal entitlements that do not allow for discretionary decisions (e.g., the EU Blue Card ). In these cases, the immigration authorities must grant the residence permit if the requirements are met. The authorities may not then reject the application on the grounds of discretion.
The granting of the following residence permits is at the discretion of the authorities:
Residence permit for vocational training according to Section 16a of the Residence Act (should-provision)
some types of student visas according to Section 16b Paragraph 5 of the Residence Act (optional provision)
Deficit notice and recognition partnership according to Section 16d of the Residence Act (should-provision)
Language course visas according to Section 16f Paragraph 1 Residence Act (optional provision)
Visa for students according to Section 16f Paragraph 2 Residence Act (should-provision)
Visa to seek a training or study place according to Section 17 of the Residence Act (optional provision)
Residence permits for employment (which are not skilled worker titles) in accordance with Section 19c of the Residence Act in conjunction with the Employment Ordinance (may-provision)
Issuance of an Opportunity Card in accordance with Section 20a of the Residence Act (optional provision)
Residence permit for self-employment in accordance with Section 21 of the Residence Act (optional provision)
Residence permit for freelancers according to Section 21 Paragraph 5 of the Residence Act (optional provision)
Residence permit for other family members (e.g. parents and siblings) in hardship cases according to Section 36 Paragraph 2 of the Residence Act (optional provision)
Issuance of residence permits in special cases pursuant to Section 7 Paragraph 1 Clause 3 of the Residence Act (may-provision)
In these cases, the embassy or immigration authority must decide at its discretion whether or not to grant a residence permit. It is important to distinguish between "may" and "should" regulations (so-called intended discretion). Whenever a "should" regulation is involved, the discretion is generally exercised in the foreigner's favor. The authority must then provide compelling reasons why the residence permit cannot be granted. In the case of "may" regulations, however, the authorities are considerably more free in exercising their discretion.
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3. How is discretion exercised?
Where discretion is granted, it must be exercised dutifully. Discretion means weighing the different or conflicting aspects and interests and conclusively determining which interests are to be given priority. Even where discretion is granted, the aspects for and against the existence of a specific condition must be weighed. The respective considerations must be recorded in bullet points in the
administrative procedure and, if applicable, in the rejection notice.
The following points regularly speak against the granting of a residence permit on the basis of discretionary considerations:
the control and limitation of migration
labor market policy considerations
Danger of strain on social systems
Risk of misuse when issuing a visa
The following points regularly speak in favour of granting a residence permit on the basis of discretionary considerations:
Combating the shortage of skilled workers (e.g. trainees)
Promoting the economy in Germany (e.g. for the self-employed)
Increase in tax revenues of the German state
Creating jobs in Germany
Family in Germany
Avoiding humanitarian hardship
other ties to Germany
This list is not exhaustive. Ultimately, discretionary considerations always depend on the individual case , which is why a complete list cannot be provided here.
4. Limitations on discretion
The discretion granted to authorities is not unlimited and is fundamentally subject to judicial review . While courts may not review the discretion itself, they may review whether the authorities have made errors in exercising their discretion (e.g., irrelevant considerations). In this respect, authorities must exercise their discretion in accordance with the purpose of the authorization and adhere to the statutory limits of discretion ( Section 40 of the Administrative Procedure Act ). In practice, authorities often make errors in the exercise of their discretion. These errors can then result in the authority's decision being unlawful and having to be overturned .
Regularly relevant cases of incorrect exercise of discretion are the so-called reduction of discretion to zero and the self-binding of the administration . Reduction of discretion to zero refers to circumstances in which the otherwise existing discretion of the authority is effectively reduced to a single lawful decision. This means that although the law grants the authority discretion, it must decide in a very specific way in the specific case – it no longer has any choice. Reduction of discretion to zero is particularly relevant if rejecting the application would violate the foreigner's rights. This is often the case, for example, when an application is rejected disproportionately or when the person concerned has particularly legitimate interests .
The administration's self-binding is another mechanism for limiting discretion. It arises from the general principle of equality according to Article 3 Paragraph 1 of the Basic Law : If the administration has exercised its discretion in a certain way in comparable cases in the past, it may not deviate from this practice without objective reason. For example, if an authority has issued a residence permit to all applicants in certain situations, it may not change this practice without good reason. If a new applicant is rejected without the factual circumstances having changed, this is a violation of the administration's self-binding and thus of Article 3 of the Basic Law . In this case, the rejection is unlawful and can be overturned.
Summary of this Page
The discretion of the immigration authorities is a central instrument in German residence law and particularly affects visa and residence permits, which do not provide for the granting of entitlement. This administrative discretion must always be exercised dutifully, i.e., according to comprehensible and documented criteria. A distinction must be made between "should" and "may" provisions, which place different demands on decision-making practice. Erroneous discretionary decisions—for example, in cases of violations of the purpose of the authorization or irrelevant considerations—can be judicially reviewed and overturned. Reducing discretion to zero and binding the administration's discretion represent important limitations on discretion and ensure the consistent and legally compliant application of residence law.
